Ms Y and Health Service Executive

Whether the HSE was justified in its decision to refuse certain information from the applicant’s medical records under sections 35(1)(a) and 37(1) of the FOI Act

13 March 2020

Background

In a request dated 12 November 2019, the applicant sought access to her medical records from 2016 to the date of her request held by the HSE’s Mental Health Service. On 4 December 2019, the HSE decided to part-grant the request. It released records to the applicant with some information redacted under sections 35(1)(a) and 37 of the FOI Act. On 8 December 2019, the applicant sought an internal review of that decision. She also indicated that she wished to have her medical records amended under section 9 of the FOI Act. On 14 January 2019, the HSE issued its internal review decision, wherein it released some additional information contained in records but not all. On 20 January 2019, the applicant sought a review by this Office of the HSE’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence between the HSE and the applicant as outlined above and to correspondence between this Office and both the HSE and the applicant on the matter. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision. In referring to the records at issue, I have adopted the numbering system used by the HSE when processing the request.

Scope of Review

This review is concerned solely with whether the HSE was justified in its decision to withhold certain information from records 10, 15, 16, 19, 72, 76, 77, 78 and 79 under section 37(1) and to refuse record 40 in full under section 35(1)(a) of the FOI Act.

Preliminary Matters

While I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. This constraint means that, in the present case, the extent of the reasons that I can give for my decision is quite limited.

I also note that the applicant indicated that she wished to have some of the records released to her amended on the ground that they contain a number of errors. It is open to the applicant to submit an application to the HSE under section 9 of the FOI Act to have the records in question amended. The accuracy, or otherwise, of the records does not form part of this review.

Analysis and Findings

Section 35(1)(a)- Record 40

The HSE withheld record 40 under section 35(1)(a) of the FOI Act. Section 35(1)(a) provides that an FOI body shall refuse to grant an FOI request if the record concerned contains information given to an FOI body in confidence and on the understanding that it would be treated as confidential, and the body considers that its disclosure would be likely to prejudice the giving to it of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.

Record 40 is described by the HSE as correspondence. It argued that it was clear from the circumstances, content and currency of the correspondence that it was provided in confidence and on the understanding that it would be treated as confidential. It explained why it considered that release of the record would be likely to prejudice the giving of similar information in the future and why it was important that its Mental Health Services should continue to receive such information.

Having regard to the HSE’s explanation, and to the particular circumstances of this case, I find that section 35(1)(a) applies to record 40.

Section 35(3) provides that section 35(1) does not apply where the public interest would, on balance, be better served by granting than refusing the request. In relation to the issue of the public interest, it is important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26. It is noted that a public interest ("a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

It is important to note that under section 13(4) of the Act, any reasons a requester gives for a request must generally be disregarded. In the context of determining whether to grant a request in the public interest under section 35(3), this means that the reasons given for the request may be considered only insofar as they reflect a true public interest, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.

There is a public interest in enhancing the transparency and accountability of the HSE in terms of how it carries out its statutory functions. Indeed, section 11(3) of the Act provides that in performing any functions under the Act, public bodies must have regard to the need to achieve greater openness in their activities and to strengthen their accountability and improve the quality of their decision-making.

On the other hand, section 35(1)(a) itself reflects the public interest in the proper preservation of confidences. I consider that there is a public interest in safeguarding the flow of information of the type at issue in this case to the HSE.

The question I must consider is whether the public interest would, on balance, be better served by granting access to record 40. In my view, it would not. I note that the HSE has released the majority of the records it holds relating to the applicant. I am not satisfied that the release of record 40 would further enhance the transparency and accountability of the HSE to the extent that it should be afforded greater weight than the public interest in the proper preservation of confidences. I find, therefore, that section 35(3) does not apply and that the HSE was justified in refusing access to record 40 under section 35(1)(a) of the FOI Act.

Section 37- Records 10, 15, 16, 19, 72, 76, 77, 78 & 79

Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information).

Section 2 of the FOI Act defines the term “personal information” as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential.

Having reviewed the records at issue, I am satisfied all of the withheld information is either personal information relating to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to the personal information of other individuals, i.e. joint personal information. In other words, the disclosure of any of the withheld information would also involve the disclosure of personal information relating to individuals other than the applicant. Accordingly, I find that section 37(1) applies to such information.

Section 37(2) sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in respect of the information refused by the HSE. Furthermore, section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates.

As no evidence has been presented to this Office to suggest that the release of the withheld information would be to the benefit of the third parties concerned, I find that section 37(5)(b) does not apply. On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person to whom the information relates.

As I have outlined above, the FOI Act acknowledges that there is a public interest in promoting the transparency and accountability of public bodies in the manner in which they perform their functions. However, the FOI Act also recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

It seems to me that the public interest in promoting the transparency and accountability of the HSE has been served to a large extent by the release of the majority of the records to the applicant. The question I must consider, therefore, is whether the public interest in further enhancing that transparency and accountability outweighs, on balance, the significant public interest protecting the privacy rights of the third parties concerned. Having regard to the nature of the information at issue, I am satisfied that it does not. In my view, the disclosure of the information would not enhance the transparency or accountability of the HSE in respect of its dealings with the applicant to the extent that it would outweigh the privacy rights of the individuals in question. I am also particularly cognisant of the fact that release under FOI is, in effect, release to the world at large given that the Act places no constraints on the uses to which information released under FOI may be put. I find therefore, that section 37(5)(a) does not apply.

I find, therefore, that the HSE was justified in its decision to refuse access to the redacted information at issue under section 37 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the HSE’s decision to refuse access to the withheld information, under section 35(1)(a) and 37(1) of the FOI Act.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.